Opening statements in the first-of-its kind Xbox 360 criminal hacking trial were delayed here Wednesday after a federal judge unleashed a 30-minute tirade at prosecutors in open court, saying he had "serious concerns about the government's case". "I really don't understand what we’re doing here," US District Judge Philip Gutierrez roared from the bench. Gutierrez slammed the prosecution over everything from alleged unlawful behavior by government witnesses, to proposed jury instructions harmful to the defense.

But the burden of proof would still be on the prosecutors. Even if he did stick a DVD-R in there, which almost certainly didn't happen or it would have come up earlier, they'd have to prove he didn't have a commercial copy of that game anywhere on his property. If he did, it's a backup, not a bootleg.